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Aquinnah Case in Towns' Eye

Up-Island Selectmen Will Meet; Neighbors Support an Appeal of Ruling
That Favored Tribe on Zoning

By JULIA WELLS Gazette Senior Writer

The town of Aquinnah will join the Gay Head Taxpayers Association in
asking a superior court judge for reconsideration of his recent decision
in favor of the Wampanoag Tribe of Gay Head (Aquinnah).

Although the Aquinnah selectmen have agreed to join the move to
reconsider, they have not yet decided whether to take the next step and
appeal.

A joint meeting today between the Aquinnah and Chilmark selectmen is
expected to be a stage for continuing discussion about the court ruling,
in which the Hon. Richard F. Connon found that the tribe cannot be sued
because of sovereign immunity.

West Tisbury selectmen are also expected to attend the meeting, as
other Island jurisdictions fear the ruling has implications for every
town on the Vineyard, especially in the area of land use.

"We think the Aquinnah selectmen should appeal this case to a
higher court - this could affect every town on the Vineyard and
the implications, both known and unknown, are staggering," said
John Early, chairman of the West Tisbury selectmen.

At their regular meeting last week, all three West Tisbury selectmen
expressed concern about the court ruling. Chilmark selectmen have
expressed similar concerns.

Early last week the Gay Head Taxpayers Association and the Benton
Family Trust, two interveners in the case, decided to ask for
reconsideration before filing a formal appeal. On Friday the town joined
the motion to reconsider.

"No one, not even the defendants, contends that the defendants
did not agree to be bound by the town zoning bylaws," the
attorneys for the town and the taxpayers wrote in part in the brief that
accompanies the motion. "These zoning bylaws explicitly provide
for judicial enforcement," the attorneys wrote.

The ruling by Judge Connon has the power to turn a landmark 1983 Gay
Head Indian land claims settlement on its head. The judge found that the
doctrine of sovereign immunity trumps the 1983 Wampanoag settlement
agreement, as well as subsequent state and federal legislation that led
to federal recognition of the tribe in 1987.

The Wampanoag Tribe is the only federally recognized tribe in
Massachusetts.

The 1983 settlement agreement and the state and federal acts all
contain explicit language noting that the land conveyed to the tribe is
subject to state and local laws.

The case centers on a simple zoning dispute that began when the
tribe built a small shed and pier at the tribal shellfish hatchery in
March of 2001 without obtaining a building permit. The hatchery is
located on the Cook Lands fronting Menemsha Pond in Aquinnah, one of
four land areas conveyed from the town to the tribe under the terms of
the 1983 settlement agreement.

In May of 2001 the town went to court to compel the tribe to comply
with zoning rules.

Today's joint meeting between Aquinnah and Chilmark is an
annual affair held to discuss issues of mutual concern between the two
neighboring up-Island towns.

Michael Hebert, chairman of the Aquinnah selectmen, said he did not
know how much discussion will center on the Wampanoag case.

"This is not the only focus of the meeting - quite
frankly, I don't know how big a deal anyone is making of
it," Mr. Hebert said. Mr. Hebert is believed to be the swing vote
on his board when it comes to an appeal of the court ruling; selectman
Carl Widdiss is a member of the tribe and known to favor dropping the
case, while newly-elected selectman James Newman has said he will
support an appeal.

Yesterday Mr. Hebert made it clear that he has not made up his mind.

"I just want to take my time and really consider all the
issues around this," he said.

In the motion to reconsider filed on Friday, attorneys for the town
and the taxpayers association point repeatedly to the contradictory
language of Judge Connon's decision and also to the clear language
in the settlement agreement.

The agreement refers not only to tribal lands as being
"subject to the same laws as any other Massachusetts
corporation," but also says that the same laws apply to "any
other land it [the tribe] may acquire."

Attorneys also point out that the settlement agreement was adopted
before the tribe achieved federal recognition, and that the agreement
was ratified by later state and federal legislation.

"Here, a nonsovereign agreed that, were it ever recognized as
a sovereign, it would continue to be treated as a nonsovereign
corporation - and Congress ratified that agreement," the
attorneys wrote.

Under the rules of the court a motion to reconsider will take
precedence and the deadline for the appeal period will be stayed pending
the outcome of the motion to reconsider.

In a separate motion, attorneys for the taxpayers association have
also asked Judge Connon to consider vacating his decision and sending it
directly to the state appeals court under a civil procedure known as
rule 64.

Citing the "exceptional novelty" of the case, attorneys
for the taxpayers argue that it is likely to attract the attention of
the state Supreme Judicial Court.

Attorneys also note bluntly the ramifications of allowing the lower
court ruling to stand, even for a short period of time. "The
defendants seemingly would be able to build, without judicial review,
whatever they believed appropriate during . . . any appeal."